Monthly Archives: May 2024

Civil Rights

TikTok law threatening a ban if the app isn’t sold raises First Amendment concerns

by Anupam Chander, Georgetown University and Gautam Hans, Cornell University

TikTok users worry about losing their social media platform, but First Amendment rights are on the line, too. AP Photo/Ted Shaffrey

TikTok, the short-video company with Chinese roots, did the most American thing possible on May 7, 2024: It sued the U.S. government, in the person of Attorney General Merrick Garland, in federal court. The suit claims the federal law that took effect on April 24, 2024, banning TikTok unless it sells itself violates the U.S. Constitution.

The law names TikTok and its parent company, ByteDance Ltd., specifically. It also applies to other applications and websites reaching more than a million monthly users that allow people to share information and that have ownership of 20% or more from China, Russia, Iran or North Korea. If the president determines that such applications or websites “present a significant threat to the national security,” then those apps and websites, too, must either be sold or banned from the U.S.

TikTok’s suit says that the law violates the First Amendment by failing to provide evidence of the national security threat posed by the app and for failing to seek a less restrictive remedy. Despite legislators’ claims to the contrary, the law forcing the divestiture of TikTok – the Protecting Americans from Foreign Adversary Controlled Applications Act – implicates First Amendment interests. In our view, it does so in ways that ripple beyond this specific case.

As a company incorporated in the United States that provides an online publishing platform, TikTok has a right protected by the First Amendment to select what messages – in this case, user videos – it chooses to publish.

A ban appears to us, scholars who study law and technology, to be a massive prior restraint, which is generally barred by U.S. courts. Prior restraint is action by the government to prevent speech, typically some form of publication, before it occurs.

The First Amendment limits what the government can do to censor speech.

Speech in the crosshairs

The law’s backers say that it is not a ban – all TikTok has to do is sell itself. These supporters describe the bill as a divestiture, a purely economic regulation that they say should insulate it from First Amendment challenge. After the sale, users could happily keep on using TikTok, not caring who owns the company. But the law seems to us an attempt to control speech by mandating a change in ownership.

Changing the speech content on the app is the express goal of some of the law’s backers. The principal author of the bill, former U.S. Rep. Mike Gallagher, who stepped down from office in April to join a venture capital firm partly backed by Microsoft, explained to The New York Times that he was principally concerned about the potential for the Chinese Communist Party to spread propaganda on the app. The Times and The Wall Street Journal have reported that Congress passed this bill in part because of unsubstantiated accusations that TikTok was unfairly promoting one side in the Israel-Hamas war.

Imagine if the government told Jeff Bezos that he had to sell The Washington Post because it was worried that he might push a particular agenda using his control of the newspaper. Or to use a digital analogy, what if the government told Elon Musk that he had to sell X, formerly Twitter, because it didn’t like his content moderation of legal speech? Those scenarios clearly have a connection to First Amendment protections.

Ownership matters

Transferring TikTok’s ownership from one company to another matters greatly for the purposes of First Amendment analysis.

Supreme Court Justice Elena Kagan observed during oral arguments in a case unrelated to TikTok’s ownership that ownership can make a difference in an app. She noted that the sale of Twitter to Elon Musk changed the character of the app. Kagan said, “Twitter users one day woke up and found themselves to be X users and the content rules had changed and their feeds changed, and all of a sudden they were getting a different online newspaper, so to speak, in a metaphorical sense every morning.”

Indeed, The Washington Post found a rightward tilt after Twitter changed hands.

By forcing the sale of TikTok to an entity without ties to the Chinese Communist Party, Congress’ intent with the law is to change the nature of the platform. That kind of government action implicates the core concerns that the First Amendment was designed to protect against: government interference in the speech of private parties.

U.S. Rep. Raja Krishnamoorthi, co-sponsor of the House bill on TikTok, pointed to another instance where the U.S. government ordered a Chinese company to sell a U.S. app. In 2019, the Committee on Foreign Investment in the United States ordered the new Chinese owners of Grindr to sell the dating app, which the Chinese owners did the following year. In that case, the foreign owners could not assert First Amendment rights in the United States, given that they were outside the U.S., and thus no court considered this issue.

TikTok is claiming First Amendment protection against the law forcing its sale or ban.

National security claims

The government hasn’t disclosed to the public the national security concerns cited in the TikTok law. While such concerns, if accurate, might warrant some kind of intervention, some Americans are likely to decline to take claims of national security urgency on good faith. To address skepticism of secret government power, particularly when it involves speech rights, the government arguably needs to present its claims.

U.S. Sens. Richard Blumenthal and Marsha Blackburn, both of whom supported the TikTok law and have seen the government’s secret evidence, called for the declassification of that information. We believe that’s a vital step for the public to properly consider the government’s claim that a ban is warranted in this instance. In any case, the courts will ultimately weigh the secret evidence in determining whether the government’s national security concerns justified this intrusion upon speech.

What seems likely to happen, absent judicial invalidation or legislative repeal of the law, is a world in which TikTok cannot effectively operate in the United States in a year’s time, with mobile app stores unable to push out updates to the software and Oracle Corp. unable to continue hosting the app and its U.S. user data on its servers. TikTok could go dark on Jan. 19, 2025, in the United States.The Conversation

Republished with permission under license from The Conversation.

Access to Justice

In some states that say they elect judges, governors choose them instead

by Bryna Godar, University of Wisconsin-Madison and Harry Isaiah Black, University of Wisconsin-Madison

Minnesota has elections for Supreme Court justices, who serve in this building, but the governor appoints almost every one of them instead. Dennis Macdonald/Photodisc/Getty Images

State supreme court races have become pivotal in current legal battles over issues including abortion, elections, education, the environment and LGBTQ rights. With more than 80 state supreme court seats up for election this year in 33 states, voters have the potential to shape the future of their states for years to come.

That is, if they actually get to choose who joins the court.

Our research shows that in two states with judicial elections – Georgia and Minnesota – nearly every state supreme court justice steps down midterm, allowing the governor to appoint a successor instead of the state holding an open election for a new justice. This practice can at times place the governor at odds with the voters. It is also an incentive for governors, justices and other state officials to manipulate the process of judicial selection for partisan gain.

Election or governor’s choice?

The mechanics of selecting state supreme court justices vary throughout the country.

In the founding era, all states used gubernatorial or legislative appointments to select justices.

Elected judiciaries, including in Georgia and Minnesota, largely came about in the 1800s in response to concerns about appointed judges serving the interests of the governors and legislators who appointed them instead of those of the people. Later innovations included the use of nominating commissions that recruit and vet candidates and retention elections in which voters are asked to vote “yes” or “no” in an uncontested election on whether a judge should remain in office.

Today, 21 states initially select supreme court justices through popular elections. Another 26 states select justices through appointments, all with some form of check on the appointment power – either by means of a nominating commission, a confirmation vote by another elected body, or both.

New Mexico uses a hybrid system in which the governor appoints justices who then run in partisan elections, while South Carolina and Virginia select justices via legislative elections.

Georgia’s and Minnesota’s constitutions provide for nonpartisan elections to select and retain justices. Yet in practice, justices in both states have long been selected primarily through appointment by the governor.

Since 1980, for instance, all but three of the 25 justices to join the Georgia Supreme Court were appointed rather than elected, as were all but one of the 30 justices to join the Minnesota Supreme Court. Eight of Georgia’s nine current justices were appointed, and all seven of Minnesota’s current justices were appointed.

Continuing this tradition, two Minnesota justices this year are stepping down – one voluntarily, the other due to mandatory retirement. That allows Democratic-Farmer-Labor Gov. Tim Walz to appoint their replacements. Walz’s appointees first face elections in 2026.

Once appointed, they stay

Although appointees in Minnesota and Georgia face elections for subsequent terms, in practice, they stay until they choose to leave or face mandatory retirement. No incumbent Minnesota justice has lost an election since 1946, and no incumbent Georgia justice has lost an election in the court’s nearly 180-year history.

This ability of appointees to prevail in elections is a key factor in the states’ high rates of appointments. In contrast, in states like Ohio where incumbents lose more frequently, or in the two states where appointees cannot run for subsequent terms – Louisiana and Arkansas – more justices reach the bench via elections.

In addition to appointee win rates, many complex and interrelated factors influence the rate of appointments in states with judicial elections, none of which fully explains the practice in Georgia or Minnesota.

Are these appointments a problem?

As noted, many other states initially select their justices through appointments, and some scholars and policymakers argue that appointments are a better judicial selection method than elections.

But the practice can place the governor at odds with voters. For example, in 1992, Alan Page overwhelmingly won election to the Minnesota Supreme Court, making history as the first Black justice. Yet his win came only after two governors opposed his candidacy and sought to cancel elections that would have featured Page. Page successfully overcame the second governor’s effort and became the only justice since 1967 to be elected to the state’s high court.

Another concern is that, unlike other states that require selection through appointment, both Georgia and Minnesota lack explicit checks on the governor’s interim appointment power. Neither state requires a confirmation vote for appointees. And while several governors in each state have convened nominating commissions, they are not required to appoint someone the commission recommends.

Furthermore, as scholar Stephen Ware has written, the use of a nominating commission “all or mostly appointed by the governor hardly serves as a check on the governor.”

In reality, a similar concern is present even in some states that do have explicit limits on the governor’s appointment power. In Florida, for example, the governor has consolidated power over the state’s nominating commission, reducing its effectiveness as a check.

But it is notable that today no state has intentionally adopted a system of wholly unchecked gubernatorial appointment, like the de facto systems Georgia and Minnesota have implemented. This raises the question of whether Minnesota and Georgia voters would have adopted this system in their respective constitutions had they been asked.

Such unconstrained power can also contribute to partisan gamesmanship. In 2020, Republican-appointed Justice Keith Blackwell resigned from the Georgia Supreme Court just before the end of his term, allowing Republican Gov. Brian Kemp to appoint his successor. The Republican secretary of state then canceled the already-scheduled election for Blackwell’s seat, leading one commentator to describe these events as a “scheme to keep Blackwell’s seat in the GOP’s hands.”

As state supreme courts have the last word on an increasing number of high-profile disputes, this practice of substituting elections with appointments by a governor is increasingly consequential. With heightened spending on governors’ races aimed at influencing appointments to all levels of state courts, it is unclear whether other states will follow Georgia’s and Minnesota’s lead in moving to a de facto appointment system or, conversely, if they will maintain a greater role for the voice of the people.The Conversation

Republished with permission under license from The Conversation. 

Criminal Law, Guns, Poverty, Race

To reduce Black-on-Black crime, two criminal justice experts explain why offering monthly stipends to people at risk makes sense

EDITORIAL NOTE:

by Randall Hill

Much of the so-called Black-on-Black crime is directly related to centuries of institutionalized racism and racist policy that still persists today! Prior to the Supreme Court Decision of Brown v. Board of Education and Civil Rights legislation that resulted from the Civil Rights Movement, racism was overt and racists were direct. However, since racism is now technically illegal, it is practiced more covertly. 

Covert racism is disguised and subtle, rather than public or obvious. Concealed in the fabric of society, covert racism discriminates against individuals through often evasive or seemingly passive methods. Covert, racially biased forms of discrimination are often hidden or rationalized with an explanation that society is more willing to accept. These racial biases cause a variety of problems that work to empower the suppressors while diminishing the rights and powers of the oppressed. It creates major obsticles which make if nearly impossible for some to escape generations of poverty. One example is how public education is funded based on property taxes. Well off communities tend to have better schools because more tax money is invested, however, students in poor communities often get trapped in underfunded and usually underperforming schools. Covert racism can't be easily proved or disproved and it can't be criminalize or deem unconstitutional and usually fall outside the bounds of the law. In fact, victims of covert racism often feels uneasy, excluded, ignored, silenced, rejected, marginalized, or exploited without necessarily knowing why. 

The term Black on Black Crime is a form of covert racism. People commit crimes where they live, whom do you suppose is committing crimes in China or Russia? Racialized terms can be misleading. Since the United States is for the most part segregated, crime in black communities is most often commited by black people, for example, (90% of black murder victims are killed by black perpetrators) vs. White on White Crime (83% of white murder victims are killed by white perpetrators). However, with that said, because of the horrible legacy of racism, which includes psycological damage, homicide is the leading cause of death among young Black men.

Racist individuals and groups didn't simply fade away because civil rights legislation and Supreme Court decisions made racial discrimination illegal, they changed their strategies. Unfortunately, every major institution including banking/finance, education, government, health care, media, medicine, and most glaringly law enforcement have elements of covert racism that negatively impact African-Americans and other oppressed groups. In 2006, the FBI Reported how white supremacist had inflitrated law enforcement. Ten years later, in 2016, the FBI still could not determine whether racial bias in policing was an epidemic, even though common sense indicates it is. We can easily assume white supremacist have infiltrated each of society's major institutions. Therefore, I am often cautious about the covert intentions of so-called solutions, but I must admit that idea mentioned in the article below seems like it would have a positive impact.

MAIN ARTICLE

by Thaddeus L. Johnson, Georgia State University and Natasha N. Johnson, Georgia State University

President Joe Biden greets police chiefs from across the country at the White House on Feb. 28, 2024. Chip Somodevilla/Getty Image

After a historic spike in homicides in 2020, murder rates in most U.S. cities appear to be returning to pre-pandemic levels. This drop has sparked some public attention, as demonstrated during a meeting of police chiefs in February 2024 at the White House.

During the meeting, President Joe Biden lauded investments made in law enforcement and community anti-violence initiatives during his administration. In 2023, Biden said, the U.S. “had one of the lowest rates of all violent crime in more than 50 years.”

But the most striking fact about homicide in the U.S. has been largely overlooked during such meetings – Black Americans are murdered at nearly eight times the rate of white Americans.

Young Black men in inner cities are disproportionately affected. They are both the primary victims and perpetrators of gun assaults and homicides.

This grave reality does not mean Black people are inherently violent. Instead, it largely reflects their disproportionate experience of systemic barriers such as poverty and limited access to quality education, good jobs and affordable housing – all factors that research shows contribute to neighborhood violence.

Making matters worse are the high rates of illegal gun possession among young men in urban areas. This behavior is often driven by reasons beyond criminal intent and include distrust of the legal system and the perceived need for self-protection.

More people walking around with weapons raises the risks for minor disputes escalating into deadly encounters. Studies revealing a connection between increased gun carrying and a rise in gun-related fatalities highlight the dangers of ready access to guns.

Limits of tough-on-crime policies

To be clear, keeping Americans safe requires arresting and locking up dangerous offenders. But the problem of street violence transcends punishment strategies that emphasize more police, more enforcement of petty crimes and, ultimately, more incarcerations.

Such traditional, tough-on-crime responses fail to address deeper social issues and unwritten rules like the “street code” and the elusive American dream dictating daily life in many inner cities.

This street code discourages police cooperation and glorifies guns and violence as ways to resolve conflicts and gain respect. At the same time, the code encourages intimidation and swift retaliation against perceived threats or insults.

A van from a coroner's office is seen leaving the scene of a fatal shooting.
An Alameda County Coroner’s Bureau van leaves the scene of a fatal shooting by police officers in West Oakland, Calif., on April 17, 2024. Jane Tyska/Digital First Media/East Bay Times via Getty Images

For many people in underserved communities, generational poverty and limited opportunities for upward mobility make crime a viable alternative to a system that seems rigged against them. When people are presented with few legitimate economic prospects, studies show that some turn to crimes such as drug-dealing and theft.

Despite being classified as nonviolent offenses, those involved frequently use violence to establish dominance or settle disagreements.

As scholars of criminal justice – one of us is also a former police officer of 10 years – we have found that one way to reduce crime and its harmful effects on communities is to develop strategies for at-risk individuals that offer a range of mental health and other professional services, including a monthly stipend.

It is no coincidence that young Black males, who are most at risk of gun violence, also have the lowest chance of escaping poverty.

According to the U.S. Bureau of Labor Statistics, 54% of Black men born in the poorest households end up in the lowest earnings bracket between the ages of 28 to 35, compared with 22% of white men, 29% of white women and 34% of Black women.

Such grim prospects, along with the relatively small group of offenders driving community violence, highlight the importance of targeted, holistic interventions.

Cash incentives

There is one approach that cities can consider – cash allowances for young Black men at greatest risk of committing gun violence.

Community-based initiatives like Advance Peace, a nonprofit agency focused on anti-gun violence, are addressing the economic pressures behind street violence and demonstrate the potential of providing people with guaranteed payments each month.

Three Black men are sitting in chairs during a meeting to discuss reducing gun violence.
Advance Peace members gather for a meeting in Sacramento, Calif., on Oct. 26, 2018. x

Launched in Richmond, California, in 2009, Advance Peace receives its funding from city contracts, federal grants and private donations.

Its programs offer participants as much as US$1,000 monthly for up to nine months. This stipend is conditional on meeting goals intended to steer them away from crime and violence, such as completing educational courses or finding jobs.

To address underlying emotional and behavioral issues, participants are also connected with round-the-clock mentorship by staff counselors for at least 18 months. Other services include cognitive behavioral therapy to help manage aggressive and impulsive tendencies associated with violence.

In addition, gang rivals are paired together during sponsored trips to foster dialogue and humanize one another.

In California cities implementing Advance Peace, such as Richmond, Sacramento and Stockton, shootings decreased from 2018 to 2021, and the overwhelming majority of participants have avoided both gun violence and new arrests.

Research on these California cities shows that neighborhoods with Advance Peace programs saw a 5% to 52% decrease in the number of victims of gun violence in 2021 compared with 2018.

Black men under 35 also were involved in 15% to 42% fewer shootings across the three cities.

Solutions that address root causes

Opponents of the monthly stipend, including former Sacramento County Sheriff Scott Jones, have criticized the idea of paying people to obey the law as “cash for criminals.” They contend that this approach suggests compliance requires monetary incentives rather than personal accountability. While understandable, we believe these criticisms are misguided.

The objective is not to pay off potential offenders but rather to stabilize tumultuous lives and open avenues for personal and professional growth. It is challenging to develop these initiatives without stigmatizing recipients or creating dependency. But the harsh truth is that we either pay now or pay later.

Besides the loss of life and the trauma caused by gun violence, its massive economic burden extends beyond victims and their families. Recent estimates reveal that the financial toll of gun violence in the U.S. amounts to a staggering $557 billion annually, surpassing the gross domestic products of countries such as South Africa and Denmark.

These costs include immediate and long-term medical bills, legal expenses and lost earnings from victims’ death or disability.

To this point, another analysis found the potential shootings prevented by Advance Peace programs saved cities $67 million to $268 million in associated costs in 2022. But direct payments to participants offer only temporary relief.

To effectively break the cycle of violence, comprehensive efforts are needed to improve access to quality education, jobs, housing, health care and community development in inner cities. Initiatives that address community violence without tackling its underlying causes is akin to treating symptoms while ignoring the root causes of a disease.

Strategically investing in equal opportunities for upward mobility can create a society in which young Black men are less likely to turn to guns for empowerment and self-preservation. We view this investment as a small price to pay for the promise of safer cities.The Conversation

Republished with permission under license from The Conversation.

Criminal Law, Politics

What the Supreme Court is doing right in considering Trump’s immunity case

by Claire B. Wofford, College of Charleston

There was a lot of press attention paid to the Trump immunity hearing at the Supreme Court building on April 25, 2024. Mandel NGAN / AFP/Getty Images

Following the nearly three-hour oral argument about presidential immunity in the Supreme Court on April 25, 2024, many commentators were aghast. The general theme, among legal and political experts alike, was a hand-over-the-mouth, how-dare-they assessment of the mostly conservative justices’ questioning of the attorneys who appeared before them in the case known as Trump v. United States.

Rather than a laser-focused, deep dive into the details of Trump’s attempt to subvert the 2020 election, virtually all of the nine justices instead raised larger questions, peppered with hypotheticals – hello again, Seal Team Six! – about the reach of executive power, the intent of the nation’s founders and the best way to promote a stable democracy.

Justice Brett Kavanaugh’s “I’m not focused on the here and now of this case” and Justice Neil Gorsuch’s “We are writing a rule for the ages” drew particular fire.

The headline and subheadline on the New York Times analysis by Supreme Court reporter Adam Liptak complained that the court had taken “Trump’s immunity arguments in unexpected direction” with “very little about the President’s conduct.” And the story itself fumed that the justices had responded to Trump’s claim that he should not face charges as a “weighty and difficult question.”

Slate’s Amicus podcast decried the court for failing to focus on the “narrow question” the case presented, instead going “off the rails” and “bouncing all over the map” with various legal arguments. A guest on NPR’s 1A program lamented that the court had “injected new questions” into the oral argument to “slow-walk” the case and prevent Trump from facing trial before the election.

But here’s what the pundits seem to have forgotten: What happened that day in the court should have surprised no one, especially those constitutional scholars like me familiar with Supreme Court procedure.

A man in a dark suit and red tie emerging from a building with a police officer near him.
Donald Trump’s attorneys told the Supreme Court that the actions of a president should be immune from criminal prosecution. Curtis Means-Pool/Getty Images

Five words ‘change everything’

Trump’s case stemmed from his prosecution by Special Counsel Jack Smith for his alleged attempts to overturn the 2020 presidential election. Trump claimed he, as president, was immune from prosecution, and he took his case to the Supreme Court.

When parties appeal their case to the court, they must tell the justices what specific legal question or questions they want the justices to answer. As a colleague and I have explored in a recent academic journal article, the court generally accepts what is called the “Questions Presented” as given, agreeing to hear a case without making any adjustments to its legal framing.

Sometimes, however, the court will alter the legal question in some way. Why it does this is an issue that scholars like myself are just beginning to explore. And because it is that question – not the one the litigant initially asked – that frames the legal analysis, the justices can exert real control over both the case itself and the development of the law.

Trump v. United States is a classic example. When attorneys for the former president filed their request with the court, the question presented by them was “Whether the doctrine of absolute presidential immunity includes immunity from criminal prosecution for a President’s official acts.”

When it granted the petition in late February 2024, the court changed this language to “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

Five of those additional words – “if so to what extent” – changed everything. They sent a clear-as-day signal that the court would move well beyond the simple yes-or-no of whether Trump could be prosecuted.

Nine men and women seated in two rows, wearing black robes.
The full Supreme Court, with nine justices, heard oral arguments in the immunity case. Fred Schilling, Collection of the Supreme Court of the United States

The court doing its job

With their reformulation of the question, the justices would instead be determining how, when and for what acts any president could ever be held criminally responsible.

That is a much larger inquiry, one that necessarily involves formulating a legal test to draw a line between what is constitutionally permissible and what is not. That the justices spent oral argument trying do exactly that is not a problem, much less an outrage: It’s just the court, the highest appellate court in the land, doing its job.

The scope of the argument, the expansiveness of the coming opinions and the time suck for the justices to write them and the possible vanishing of Trump’s prosecution are not at all shocking. The court signaled it would address the broader question months ago when it took the case; the time to fault the court for making the case about more than just Donald Trump was then, not now.

But perhaps commentators’ response to the oral argument can be a good lesson. Americans are told to take Trump at his word, expecting his second term to contain all the extremes he gleefully says it will.

When the Supreme Court indicates what legal question it will answer, the smart response is to do the same thing – pay attention and believe. This may not make the ultimate outcome any less distasteful to many, but at least it won’t be quite as disturbing.The Conversation

Republished with permission under license from The Conversation .